"When industry fails to create adequate technologies to serve a government
need, the government must sometimes commission creation of such
technologies," Congressman Howard L. Berman (D-CA) told a recent meeting of
the Computer and Communications Industry Association (CCIA).

He went on, "Similarly, when technologies obstruct a policy objective, the
government must sometimes outlaw or limit such technologies.

"My impression is that there is a growing frustration in Congress with the
apparent lack of progress in creating adequate and interoperable DRM
(digital rights management) standards. This frustration does not bode well
for those who oppose government mandates on DRM standards."

Moreover, warned Berman, if the "marketplace" fails to create "adequate
solutions", "more and more Members of Congress [will be convinced] that
government intervention is necessary".

Congressman Berman is the ranking member of the House Judiciary Subcommittee on Courts, the Internet
and Intellectual Property, and one of the latest US politicians to jump the
Net piracy bandwagon. Earlier in his speech, Berman said he thought
"Interdiction, decoy, redirection, file-blocking, and spoofing technologies"
are solutions to "Peer To Peer Piracy" and, accordingly, "In order to
stimulate dialogue on this issue, I intend to introduce legislation creating
such a safe harbor for technological self-help measures. I will, of course,
be happy to work to address any reasonable concerns expressed about such
legislation. I am hopeful that the Subcommittee on Courts, the Internet, and
Intellectual Property will mark up this legislation in the remainder of the
107th Congress."

In the meanwhile, "Internet piracy is not promotional," he told the CCIA.
"This argument is laughable sophistry. There may be some who just want to
try before they buy, - I dont [sic] question that - but the vast majority of
illegal downloaders just want free stuff, and dont [sic] intend to purchase
legitimate copies. Do I have proof? Yes, I have both common sense, a
rudimentary grasp of economics... and a college-age daughter."

He didn't say if by that he meant his daughter downloads free stuff without
intending to purchase legitimate copies.

Be that as it may, Berman thinks there's a symbiotic rather than adversarial
relationship between "Hollywood" and "High-Tech" which needs to be
nourished. But, "There are many obstacles to technology and media reaching
their full symbiotic potential. Primary among these obstacles, I believe, is
piracy of copyrighted works," he said, going on:

"Internet piracy threatens to undermine the symbiosis between the technology
and media industries. The widespread availability of pirate works online
makes it difficult for copyright owners to develop viable Internet business
models. No matter what bells and whistles they add, copyright owners cannot
compete with unauthorized Internet services that make their works available
for free.

"There is no justification for Internet piracy. There is no difference
between pocketing a CD in a Tower Records and downloading copyrighted songs
from Morpheus. Theft is theft.

And among Net piracy problems, the most vexing is that presented by
peer-to-peer, or P2P networks, said Berman, continuing that the primary
current application of P2P networks is, "unbridled copyright piracy" which
"must be cleaned up".

Berman's solution is, "most likely a holistic approach relying on a variety
of solutions, none of which constitutes a silver bullet. At least one of
these solutions may require congressional action to make it effective".

Many believe that an important part of the solution to piracy involves
digital rights management, or DRM, technologies which protect copyrighted
works from unauthorized reproduction, performance, and distribution, he
stated.

"I support the use of strong DRM technologies. Such technologies not only
help deter piracy, but are pro-consumer and pro-technology." However, Berman
suggested, the development of strong, effective, consumer-friendly DRM
technologies is not a foregone conclusion and, "Significant debate swirls
around the appropriateness of such technologies, the appropriate role of
government in their creation, and the state of industry development
efforts."

While the development and deployment of DRM technologies should be
encouraged, they don't represent a complete solution to p2p piracy and won't
address copyrighted works already in the clear on p2p networks. Moreover,
"DRM solutions will never be foolproof, and as each new generation of DRM
solutions is cracked, the newly-unprotected copyrighted works will leak onto
P2P networks," he said.

"Shutting down all P2P systems is not a viable or desirable option. P2P
systems have many positive uses and could actually benefit those copyright
creators who choose to utilize them. Shutting down all P2P networks would
stifle innovation. P2P networks must be cleaned up, not cleared out."

Berman didn't say how shutting down all p2p systems would be achieved if it
were an option, and admitted, "The day for cleaning up P2P networks
through court action may now be past. While the 9th Circuit could shut
Napster down because it utilized a central directory and centralized
servers, the new P2P networks have engineered around that court decision by
incorporating varying levels of decentralization. It may be that truly
decentralized P2P systems cannot be shut down, either by a court or
technologically, unless the client P2P software is removed from each and
every file trader's computer.

"Copyright infringement lawsuits against infringing P2P users have a role to
play, but are not viable or socially desirable options for addressing all
P2P piracy. The costs of an all-out litigation approach would be staggering
for all parties. Litigation alone cannot be relied on to clean up P2P
piracy.

"One approach for dealing with P2P piracy that has not been adequately
explored is whether it could be addressed, at least partially, through
technological self-help measures.

"Copyright owners could employ a variety of technological tools to prevent
the distribution of copyrighted works over a P2P network. Interdiction,
decoy, redirection, file-blocking, and spoofing technologies can help
prevent unauthorized P2P distribution.

"Technological self-help measures are not particularly revolutionary.
Satellite and cable companies periodically employ electronic countermeasures
to thwart the theft of their signals and programming. Software companies
have experimented for decades with a variety of technologies that disable
software being used in violation of a license.

"When deployed to thwart P2P piracy, however, such technological self-help
may run afoul of common law doctrines and state and federal statutes,
including the federal Computer Fraud and Abuse Act. In other words, while
P2P technology is free to innovate new, more efficient methods of P2P
distribution that further exacerbate the piracy problem, copyright owners
are not equally free to craft technological responses."

Berman proposed measures by Congress to, "free copyright creators and owners
to develop and deploy technological tools for addressing P2P piracy. We
could do this by creating a safe harbor from liability for copyright owners
that use technological means to prevent the unauthorized distribution of
their copyrighted works via P2P networks.

"Obviously, such legislation must be narrowly crafted, with strict bounds on
acceptable behavior by the copyright owner.

"Such legislation should not allow a copyright owner to damage the property
of a P2P file trader or any intermediaries, including ISPs. For instance, a
copyright owner shouldn't be allowed to introduce a virus that disables the
computer from which infringing works are being made available to a
decentralized, P2P network."

He added that such legislation should also provide for strong penalties
against abuse of the authority provided by the safe harbor and that it,
"should ensure that a P2P file-trader who has been subjected to
technological self-help measures has effective remedies if he believes a
copyright owner has acted improperly."